Note: this is the third of five posts on the law and morality of necessity.
My wife and I have been watching season 2 of Narcos on Netflix this Labor Day weekend. Narcos revolves mostly around Pablo Escobar, a notorious Colombian drug lord, narco-terrorist, and fugitive from the law. In one episode, after Escobar’s men have ambushed and killed dozens of Colombian police officers in Medellin (Escobar’s hometown), the President of Colombia appoints Colonel Horacio Carrillo (played by Maurice Compte, pictured below) to capture or kill Escobar. Colonel Carrillo, however, resorts to several extra-legal methods in order to accomplish his dangerous and difficult mission. But are his methods really “extra-legal” given the difficulty of his mission or given the dire danger Escobar poses to Carrillo and his men? Once again, then, the dramatic real-life events depicted in the TV series Narcos—like the hypothetical Trolley Problem in moral philosophy and Lon Fuller’s fictional “Case of the Speluncean Explorers” in legal philosophy, both of which we have discussed in a previous post—give us an opportunity to revisit the legal and moral doctrine of necessity.
Previously (9/4), we presented the standard narrow view of necessity. In this post, by contrast, we shall consider an intriguing alternative theory of necessity: necessity as an ex ante and independent source of law. In support of this alternative view, one contemporary jurist, Giorgio Agamben, refers to the ancient legal maxim “necessity knows no law” and to the work of an early 20th Century Italian legal scholar, Santi Romano. In particular, in an obscure law treatise published in 1909, Romano describes necessity as “the first and originary source of all law.” (Agamben, p. 27.) In this way, Romano turns the doctrine of necessity on its head. Rather than creating a limited exception–one that excuses or justifies a particular transgression of law–, necessity instead converts an otherwise unlawful act into a lawful and legitimate one. On this broad ex ante view of necessity, an act done under necessity is an inherently lawful act because “necessity constitutes … the ultimate ground and very source of the law” (Agamben, p. 26) and thus makes lawful what would otherwise be unlawful.
But this alternative theory of necessity raises a new set of difficult theoretical and practical questions. To begin with, in the eloquent words of Agamben (p. 29), necessity creates “a threshold where fact and law seem to become undecidable.” On the one hand, the commission of a particular act is a fact, but on the other, whether the act was done under necessity or not requires a legal (and moral?) judgement. And so, among other things, Agamben asks (p. 29): “If a measure taken out of necessity is already a juridical norm [i.e. a lawful act] and not simply fact, why must it be ratified [ex post] and approved by a law …?” This haunting question (and the apparent contradiction with the broad view of necessity) will lead us to present a third picture of necessity, a theory we shall discuss in our next blog post (9/6).